TCEQ and EPA issue new guidance on milk disposal during COVID-19 emergency

By Jim Bradbury, PLLC

In early May, the Environmental Protection Agency (EPA) and Texas Commission on Environmental Quality (TCEQ) issued memorandum and guidance concerning issues affecting dairies during the COVID-19 health emergency. Specifically, many dairies are dealing with oversupply and the need to dispose of large quantities of surplus milk.

In a Memorandum issued on May 6, the EPA recommended that, to the extent possible, dairies hold excess milk in containment systems, waste storage facilities, and/or land dispose of milk as allowed by nutrient management plans and conservation practices. EPA explained that surplus milk disposal by dairies subject to National Pollutant Discharge Elimination System (NPDES) permitting, including Concentrated Animal Feeding Operations (CAFOs), is addressed by their permits. EPA emphasized that while it encourages dairies to manage and operate their facilities in compliance with their permits, noncompliance that occurs because of and during the COVID-19 health emergency may be subject to the EPA’s March 26 revised enforcement policy, which allows certain enforcement discretion and may allow EPA to decline seeking penalties for certain violations caused by COVID-19.

TCEQ has similarly updated its website and issued COVID-19 guidance for regulated entities. Concerning surplus milk disposal, TCEQ explains it has a process in place to review case-specific requests related to COVID-19. Significantly, no standard disposal process currently exists for milk producers. For dairies that cannot land apply or otherwise use surplus milk, several methods of disposal are available, including composting, solidify and landfilling, use in animal feed, and treatment and disposal by a third party authorized to accept and treat waste.

With respect to the disposal of raw milk specifically, TCEQ states that it should not be discharged into surface waters unless properly treated to meet Texas surface water quality standards. Further, dairies who land apply surplus milk must do so in a manner that avoids odors and nuisance conditions. TCEQ warns that milk has a higher nutrient content than manure, and therefore, dairies should be cautious in land-applying to avoid exceeding the nutrient needs of the land.

TCEQ emphasized that regulated entities are required to adhere to their permits and TCEQ rules. TCEQ stopped short of issuing a broad COVID-19 enforcement discretion policy like EPA, but on a case-by-case basis it will consider exercising enforcement discretion in certain instances where noncompliance is unavoidable due to COVID-19.

TCEQ makes clear that entities seeking enforcement discretion must demonstrate they were adversely impacted by the virus. Further, enforcement discretion does not relieve a regulated entity of its duty to comply with permit requirements and regulations to the extent possible. Further, regulated entities are expected to maintain adequate records to document all activities related to the noncompliance at issue. Additional information may be accessed here on TCEQ’s website.